


Nowhere

by wearemany



Category: The West Wing
Genre: Capital Punishment, Character Study, Episode: s01e14 Take This Sabbath Day, M/M
Language: English
Status: Completed
Published: 2001-10-05
Updated: 2001-10-05
Packaged: 2019-08-02 10:29:20
Rating: Teen And Up Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 4,753
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/16303457
Author URL: https://archiveofourown.org/users/wearemany/pseuds/wearemany
Summary: "Everybody seems to wonder what it's like down here." Or, what do you get if you throw a hundred lawyers overboard?





	Nowhere

Sam wakes up and the first thing he sees is "deterrent." He's face-down in something, probably Blackmun's dissent from Callins, and when he blinks there's "reasonable consistency" and, beyond the end of the page, his desk clock. It's five a.m. It's five a.m. and the sun's coming up and Simon Cruz has one sunrise left if Sam can't find a better reason to stop an execution than the double-bind of reasonable consistency and individual sentencing.

There's a crashing noise in the hall and then Josh slams into his office door and stands there for a minute, shocked, holding his shoulder like a quarterback who's been put down. Sam blinks again and runs his hands over his face where he can feel a crease from the edge of the book.

"What are you doing here?" Sam asks, except his mouth is dry and his voice cracks halfway through.

Josh laughs, a high, shrill giggle Sam hasn't heard before, a horse's whinny. He slides down the door until he's collapsed on the floor, half in the hall, half in the office. He's tugging on something that looks like red lace underwear hung around his neck, and Sam realizes that he doesn't know yet about the decision.

Sam swallows hard and licks his lips. "They denied the appeal," he says, thinking about how he should be sailing, how light shatters the tips of ocean waves, a million brilliant shards in the dawn off Delaware. How sometimes Josh wanders off and assumes everything will be fine when he gets back.

"Yeah?" Josh says, pulling at his hair and rubbing his eyes, but he's not really talking to Sam. "Yeah," he says more insistently. "Okay, that's okay." He sits up a little and moans. "Yeah, do that, yeah."

Josh is talking to himself but Sam has gone back to the embarrassment of his own voice cracking like a 14-year-old. Then Josh props himself up and looks at Sam. "What?" he says, puzzled.

Sam sighs. "Nothing," he says, because Josh is drunk and he doesn't know, it's not his fault. "What happened to you?" Sam asks, and then remembers about the bachelor party, some guy from Yale, Josh said. He tries to picture Laurie at something like that, red lace tied around her bare hips, drunken men trying to grab her G-string. He tries to imagine Josh thinking that was fun.

"I, uh, I..." Josh shakes himself out like a wet dog and tries to stand. Sam comes around from behind the desk and catches his elbow, breathing through his mouth because the sour smell of alcohol is making him gag. "I, uh, it turns out, you know, it turns out that sometimes -- don't ever tell her this -- but sometimes it turns out that Donna is right."

Sam slips an arm around Josh's waist and kind of drags him out into the hall and onto Toby's couch. "You never could hold your liquor, Josh," he says. Josh's suit is damp and sticky Sam notices drool pooling on his own shirtsleeve.

He sits them down. Josh sighs and slumps over onto the armrest, feet still on the floor. Sam's arm is pinned between Josh's back and the couch, hand caught around the curve of Josh's hip. "I know," Josh says into the cushion. "Don't tell anyone?"

"I don't think I'm gonna have to," Sam says, and then Josh's body goes slack like he's passed out. He probably has. He always does.

Sam's stuck, so he starts writing the Cruz brief in his head, starts practicing how he wants to tell Leo this is something they have to do, they must do. How this can be the cornerstone of a truly righteous presidency in which the lives of its citizens are valuable even after they've sinned against the state, that the president can be a father-confessor in his own right. Except that's too Catholic, and he can't paint them into a corner with the anti-abortionists.

Josh shifts and snorts and when his head bucks back a little Sam catches his fingers in the hair, soothes Josh back to sleep. Leaves his hand like that and starts over.

_Among the first settlers of this nation were those of the colony we called Georgia, men fleeing the shame of debtors prison, some of them good people, quite possibly some of them not altogether perfect. They came to our soil in exile, not from religious persecution but from a sense that their mistakes had become destiny, that whatever contribution they might have to society lay only in unpaid labor and disgrace. Presidential pardons have been rare, but they have been just, they have been in keeping with our ideals of individual liberty and an ordered measure of punishment with its focus toward rehabilitation, toward salvation. An orderly nation, a just and orderly government does unto its citizens as it asks them to do each other, and not least among those must be acting with mercy._

It's too early for all that, though, it's not even six yet and they have until midnight Sunday, which is long enough for him to come up with something better than Georgia.

Josh cranes his neck around again and blinks slowly. "What're you still doing here?" he says, back at square one again, and Sam just shakes his head and looks right into Josh's eyes for a second. Just a quick second, just a glance, just checking to make sure nothing's changed.

Nothing's changed.

Three weeks after he'd left New York, Leo and Bartlet had been in the corner of the Manchester office, heads together. "Don't we have, we must have a lawyer here?" Leo yelled, barely looking up. Toby'd been giving Sam press releases, an op-ed for the Hartford Courant, nothing big so far. But it had only been three weeks and he hadn't yet had a chance to forget that even though he'd come with Josh he was still the new guy.

No one answered Leo. "An actual lawyer," he said, waving his arms around, "not one of you fuck-offs who just went to law school so you could have some letters to drag behind your name?"

Sam went back to the release about their visit to the Concord Toastmasters.

Josh poked his head up. "Uh, Sam's a lawyer."

"Which one's Sam?" Bartlet asked, looking at CJ. Sam thought she could maybe be a Samantha. Never a Sammie, though.

Josh had walked off so Sam raised his hand hesitantly and felt like an idiot. "Sam Seaborn. Esquire." And then that became a thing he did, too. Leo would ask him things, would tell the others to ask him things. It was something he could do that Josh couldn't, which at the time was new.

Josh has slid down more now so he's almost in the crease of the cushion and he flails an arm over, pulls at Sam's thigh until Sam lifts himself up and they trade places. It's one of those awkward moments that last into the next century, two people in too little space bending limbs in directions they're not meant to go, but when they're done Josh puts his head back down on Sam's leg. Sam puts one hand back in Josh's hair and the other on his arm.

His first fall at Dewey Ballantine, he still took the subway to work. Coming back late one night at Times Square, there was an old man sitting on the floor with a shocked look on his face. There was blood all over the concrete, really red, bright red still, and he kept wondering why the oxygen hadn't -- no, oxygen turned it from blue to red, he knew that. A teenage boy held a roll of toilet paper to the guy's head, a bag of groceries torn open next to him, and there was blood and glass everywhere. Sam turned around once in a circle, looking again as he spun because he didn't want to be a bottlenecker or a rubbernecker or whatever they called it, those were the words bouncing in his head. All he had to offer there were words and not even the right ones.

So he kept walking down the passageway to Eighth Avenue, almost a full block, and people kept walking toward him, and he kept wanting to tell them. They should know, so that when they came around the corner and saw the man bleeding the red blood, they would be prepared. And why hadn't he become a doctor? Who really needed another fucking lawyer? There were too many lawyers. What do you get if you throw a hundred lawyers overboard? What difference does it make if there's not a doctor around to stop the bleeding?

He's the deputy director of communications, or sometimes counselor to the president, or sometimes that brilliant guy who writes Bartlet's speeches and then everyone applauds and he says thank you. But they've never really known what to do with him.

This thing with Cruz isn't really his job. He doesn't advise. He justifies. He sells. He puts a public face on what they have to do, that's what Toby always says, and Toby in all his gruff wisdom is right about this, like he always is. But it's been one of those weeks where it's hard to remember the things he knows. This isn't not his job, but it doesn't seem like it's anyone else's, either. All he knows right now is that they're absolutely nowhere, and that he's the one who's been sent to stop the bleeding, and there's Josh, like nothing's changed.

*

"You fell off the boat early this time," Donna says, rapping on the door. Sam's got his back to her, staring out the window and thinking about Harry Blackmun. Bobby Zane, of all people, quoting Harry Blackmun at him. Bobby Zane who used to kick the crap out of him after fourth period just because. Just because they had that much in common.

He sends her away with his foul weather gear and when she comes back he asks her to tell Josh about the appeal.

"You need him?"

Josh sat straight up around seven. Sam had fallen asleep bent over his shoulder with the taste of dried Champagne deep in his throat and then Josh kind of pushed him off and stood. "Okay?" Sam asked, stretching his neck, and then Josh stood up and scratched himself and staggered out toward the end of the hall with the bathrooms. He didn't come back.

"Just tell him --" Sam starts.

"The appeal was denied, yeah," Donna says. "He'll know?"

"Yeah," he says, and she leaves him alone again. It's almost ten. He doesn't need Bobby Zane to tell him about Harry Blackmun.

*

Sam pokes his head into Josh's office around noon. Josh is sitting with his eyes closed and the blinds pulled and doesn't move when Sam comes in.

"Donna, I swear to god, if you tell me that woman is back I'm going to, like, shoot you. Or her. Or possibly everyone."

"It's a federal crime to threaten the life of the president," Sam says, and Josh smiles weakly at Sam's voice and opens his eyes. "Listen, I want to --"

"We're not debating the death penalty here," Josh says, rolling out his shoulders and leaning forward till his chest rests on the desk. "That's not what we're here to do."

"I know," Sam says, and he does. He knows it's Josh's job to keep them away from all that.  That's always Josh's job.

But he's never trained to be this kind of lawyer. Josh is the kind of guy who went to law school so he could change the world and Sam can remember thinking that's who he was too. But mostly Sam's done research and calculated interest rates and if lives were at stake it's always been in this vague corporate way, trickle-down terrorism. He's never argued before the highest judges in the land. He's never stood and begged for a man's life to be spared, not in a court, certainly not in the room where decisions about the fate of 18-year-olds from dead-end towns get made.

"There's a political upside to this," Sam says instead.

"Please tell me you're talking about -- I don't know, anything other than trying to ignore that the Supreme Court should have the final say here."

"Since when are you so concerned about checking the power of the executive branch?"

"Sam, we're not gonna --"

"Josh. I know this isn't easy. But if you --"

Josh stands up. "I'm going home," he says, and then yells toward the door. "Donna?" He rolls his eyes and holds his head, and then yells louder. "Donna?"

Donna looks like she slept well. And possibly even ironed.  Sam hadn't noticed before.

"Did you give Sam back his fishing stuff?" Josh says, too loudly still, all dialed up and ready to leave.

"His foul weather gear?" she asks, patiently. She is very patient with Josh. Possibly she's in love with him, or maybe that's just what Josh wants to think. Josh always thinks that.

Sam plays with his cuffs, looks down because somehow now he's interrupting. His watch says twelve fifteen and he decides he doesn't have time for any of this anyway.

*

"Josh is gone?" CJ asks, and Sam looks up, squints, paws for his glasses and realizes he's still wearing them, that he's been reading and making neat little notes for another mess of hours. It's twilight, five o'clock or so.

He shrugs in response. "Not my day to watch him," he says.

"Who's been doing the scheduling, is what I want to know," CJ says, taking a seat. "How's it going?"

Sam folds his glasses and lays them on the open book, shrugs again.

Once, in clinic, a client wanted to get the city to pay for her husband's burial. He'd been a janitor at the Durham DMV, she said. He'd been a city employee, and he'd slipped and broken a hip after waxing the floors one night two years before, and he'd never been right since then. She was so sure someone needed to pay her back for what they'd been through, so convinced that a check would help fill the hole. And it wasn't at all like being stumped on a quiz he'd stayed up all night studying for.

"Well, we knew it was a long shot," CJ says.

"Right," he says, and his voice is colder than he means but sometimes he doesn't have the patience to be the only who cares and still be nice about it.

"We'll get Mendoza," she says, and he nods, knowing that will just make four against. "So Josh went home to sleep it off?"

"You know, I didn't really notice," he says sharply. "I've been kind of busy --" He gestures at the legal pad in front of him and the pen skids out of his grip and across the desk.

"It's a thing, Sam," she says. "It's just a thing you have to do, so we've done it. And then it's gonna be just like we knew it would all along." She cocks her head and her smile recedes in clicks, line by line fading from the edges of her mouth as it slackens. "Have you slept at all?"

*

Sam goes home from eight until about five. His bed is bigger than usual and he dreams that a cardinal flies full-speed into his office window and dies and the red feathers are stuck on the glass. He calls maintenance again and again to come clean them off and every time the operator connects him to Josh's office instead.

He's back at his desk at six, and he has the west wing to himself. He goes through the '94 omnibus crime package top to bottom and then backtracks to the kingpin law. Then he goes back to Blackmun, to the Eighth Amendment, to Exodus. All of it is relevant. None of it is very helpful.

He should be used to this feeling, but he's not. He repackaged words for multinational conglomerates so they could get what they wanted, and when they won the battles, they lost the war. Sometimes they lost the battles and won the appeal, so nobody cared. The fact was that the art of representation, even at a big firm, was not terribly appreciated or valued.

Still he reads and he researches and he'll learn all about whatever they're paying him for that week, why 14-year-old girls start smoking or how much a port charges oil tankers to unload their cargo or that since the Rosenbergs were electrocuted in 1953 only seven people have been killed under the federal death penalty, and none in the past 40 years or so.

He learns these things, and then it's his job to do something else, to move on, so he memorizes the names of those six men and one woman like a song because he knows he won't forget them anyway: _Hall Heady Puff Brown Krull Krull Feguer_. Two of them are brothers, which makes it easier.

He'll probably have to add Cruz to the list on Monday, and then it will echo in neat four-line stanzas.

Either way, at least he can brief CJ without notes.

*

Josh shows up mid-afternoon, looking well-slept and cleanly shaved.

"Why are you still working on this?" Josh says right off and Sam feels kicked in the chest. "Justice already gave their briefing, Toby's pacing back and forth like he's got, I don't know, a pacing animal on his back, and, Sam, come on, it's Sunday. Get out and do something, why don't you?"

"I am doing something," Sam says. "Just because you don't want to --"

"We're not having this debate," Josh says again, but Sam heard him the first time. All the first times.

"You're not," Sam says, but stops where he was going with that when Josh runs a hand through his hair and grins a little and leans against the door like he wants something.

"You wanna -- let's have dinner," Josh says.

"It's three thirty," Sam says. And they don't have dinner together anymore, but Josh knows that, too.

"The other night," Josh starts, tugging on his belt and stuffing one fist in a pocket. "Did I -- I came in here when I got back?"

"Yeah," Sam says, standing up and grabbing his empty coffee cup so he has somewhere to go. "I have a lot of --"

"'Kay," Josh says, a little deflated. "Maybe later."

Sam calls Josh's name and he turns back. "I have to do this," Sam says. "I know, I mean I know it's a long shot. But what are we doing here? This isn't about a political debate, Josh. It's just not."

"We're politicians," Josh says.

"We're human. First we're still humans. We're still citizens. And we have the right -- we have the obligation -- to look at this thing from all angles. Harry Blackmun said --"

Josh waves him off. "Don't bring Blackmun into this, Sam, come on."

"Don't -- Harry Blackmun! Harry Blackmun was a great man, and he stood up and said, I got it wrong."

Sam puts the coffee cup down and stands square facing Josh across the desk.

"In '72, in the Furman case, he dissented, he dissented in favor of the death penalty. And then here he stands in Callins, saying he was wrong, that he will no longer tinker with the machinery of death. This man was a great justice, Josh. He was a legend even in his own time. And he was wrong, and he admitted it. We do this thing, and we're wrong. We have no idea yet what kind of legacy, any kind of legacy we leave behind. But right here we could get it right. We could get it right the first time."

"You're not supposed to get it right the first time, Sam!" Josh yells. "No one does. It's called experience, and don't -- don't talk to me like this doesn't matter to me, too."

Sam looks down at the open books, at the piles of notes. He looks up at Josh in his clean suit and fresh shave. "You want to have dinner?" Sam asks softly, and it's too easy to remember how he got so good at this.

"Uh, sure, yeah. Yeah." Josh plays a couple fingers across the surface of the stained cherry, a rhythm, a tune, seven, eight names all in a row.

"Speaking from experience," Sam says, "dinner's not going to fix this. Not this time. Not next time. We're gonna do the wrong thing here, and you want me to sit in the corner and shut up? Again?"

Josh takes half a step back and bumps into the chair. "I want -- I want you to, Jesus, Sam."

Sam sits down again and props himself up, sing-song in his head. "You know how long it's been since we did this?"

Josh sits down in a heap and leans elbows onto his knees. "Look, I know that this isn't what you -- when you left New York, I know you thought that we --"

"I'm not, god, Josh, I'm not talking about that," he says, and Josh blanches and sits back. "There have been, since, there have been seven..." Sam shakes his head. "Never mind. Never mind. Just, I have to finish what I started here, okay?"

Josh finally leaves and Sam goes back to his notes. It's late afternoon, late winter, and the dying sun casts shadows on his office wall along the rows of books.

*

At seven, Leo comes by and apologizes for blaming Sam. "He doesn't know what --" Leo starts, and then catches himself.

"We'll do it better next time," Sam says, even though he doesn't really believe that's true.

There's no one here with him now, not even Josh. Just him and his worthless, utterly useless books and degrees and rhetoric, a million different ways to say this is right because we say it's right, because that's our prerogative now, to be the guys who draw the line between right and wrong. But it turns out that isn't enough, because to stay those guys you get stuck in these number games, these hypothetical statistics, these betting percentages of what ifs and maybes and we coulds. And Simon Cruz loses.

He's lost. They've lost, he should admit it and go home and wash the rest of it away. He should call Josh and apologize and they can have a beer and sit in front of Sixty Minutes and maybe get drunk enough.

But he doesn't. He turns on the desk lamp, puts everything in file folders for next time, leaves a message on Bobby's voicemail, listens to Toby go on about Patrick Ewing for a while. Turns on the rest of the lights because his office is dark now. Starts a draft of the speech for the California fundraiser and writes half an e-mail.

When Josh comes by at nine, he knocks first. Sam waves him in silently and Josh leans against the door.

"You're a good lawyer, Sam." Josh ducks his neck and looks at Sam as if he might bite.

"No, I'm not," Sam says.

"Yes -- you're, you're a great lawyer." This is Josh trying to apologize, and Sam wants to let him. But not like this.

"Not today I wasn't," he says.

Josh shrugs. "Well, today you were handicapped by a few centuries and two hundred and forty million people." He grins at Sam.

Sam doesn't smile back.

"Simon Cruz needed a lawyer, he had one last chance, and I should be able to walk into the Oval Office and say, don't do this. I didn't even get through the goddamn door."

Josh pushes off from against the door, flailing his hands emphatically.

"Simon Cruz -- Simon Cruz has a lawyer! He's got a team of them. He's, the man is a drug kingpin, Sam, you don't think he's got a pretty healthy defense fund? And on top of that, you don't think a hundred lefty groups from Michigan to Mexico City have taken up his case?" Josh clears his throat and his voice comes out lower when he continues. "They're out there having a vigil, Sam. They're as close to our front door as they are legally allowed and they're holding candles and singing 'We Shall Overcome.'"

"And they came to me, and they asked for help." Sam turns to look out the darkened window but all he can see is his own face, glass turned to mirror by the night. He looks old and sad. He looks like his father. "I couldn't even get the meeting," he says.

Josh is staring at him from behind, catching his eyes in the reflection. "You're a good lawyer, you know."

Sam clenches his fists and shakes his head at himself. "No, you know, I'm really not. I -- I don't know how to do this. I mean, everywhere, they're all around us, they're all bleeding and what do we do? We wait for help? We wait for someone else to tell us what we've done is politically acceptable?"

"You're not -- Sam? Come on. This is, you did what you could, and it wasn't going to be won no matter what you did."

Sam stands up and turns off his desk lamp. He's going home. "That's not good enough."

"No," Josh says, blocking the door where he stands, like he won't let Sam out till he agrees. "But it has to be anyway."

"It's not," Sam says, walking up close to Josh. Who came back to apologize.

The first time he'd kissed Josh he'd gotten it very, very wrong, three a.m. in front of some bar near Adams Morgan, drunk enough to pretend that was why when it wasn't at all. It had been because Josh could never finish a sentence and had dimples like a fresh-faced kid and acted like he didn't care about politics when it was clear nothing was more important. Nothing was.

Except this time, Josh kisses him. Quickly, because they aren't at a bar, they're in the White House, and anyway they don't do this anymore. Sam pulls back and coughs. "They're really singing 'We Shall Overcome'?"

"It's possible it was 'Kum Ba Yah,'" Josh says, holding Sam's arm, still staring. "I get them confused."

"Where's --" Sam's face is hot and he has to look away. "Is everyone else still here?"

Josh shifts away from the door a bit. "I think they're in CJ's office," he says. "She has to, she's gotta wait."

"We should wait with her," Sam says, going into the hall.

*

It’s eleven forty-five. The fact that there's this guy they're about to kill hangs heavy in the air and one of the fluorescents in the hall is flickering, trying to go out.

CJ's shoulders are slumped and Toby is perching on the edge of her desk with a hand on the back of her chair. Donna is quietly helping Carol collate press releases just outside the door. No one really looks anyone else in the eye, but Josh sits on the couch next to Sam so their thighs are touching and doesn't move away even when Leo comes to get CJ.

They all watch her on CNN and Sam kicks the table because none of their experience did any good after all. There aren't many questions from the pool but CJ's using the notes he gave her and she holds it together really well.

She comes back trailed by Carol and shakes her head when she finds them all still there. "Get the hell out, people," she says. "It's past midnight. It's over. It's time to go home."

Sam's flipping off his office light when Josh comes up from behind and brushes a hand across his back.

"Dinner?" Josh asks, almost under his breath.

Sam turns around with his bag in his hand. He sighs. "You know why Blackmun changed his mind?"

"Oh, Sam, come on." Josh kicks at the carpet and grabs his arm again but Sam shrugs it off.

"Because of the errors. Given the simultaneous requirements of both fair, individual sentencing and the constitutional burden of a reasonable, consistent set of punishments, the fact is that lawyers and judges aren't ever going to get it right. Blackmun said there is an inevitability of factual, legal and moral error when we try to make a broken system work."

Josh doesn't look at him, and nothing's changed, and Sam pulls the door shut.

"It was because of the errors," he says.

 

**Author's Note:**

> Everybody seems to wonder  
> What it's like down here  
> I gotta get away from this day-to-day running around  
> Everybody knows this is nowhere  
>                  -- Neil Young


End file.
